Citation Nr: 0116138
Decision Date: 06/13/01 Archive Date: 06/19/01
DOCKET NO. 00-13 929 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an effective date earlier than November 19,
1998, for a total disability rating for compensation purposes
based on individual unemployability
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The veteran had active service from May 1949 to May 1950 and
from September 1950 to September 1951.
This appeal arises from a February 2000 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Boston Massachusetts, that established entitlement to a
total disability rating for compensation purposes based on
individual unemployability (TDIU) effective from November 19,
1998. The veteran has appealed to the Board of Veterans'
Appeals (Board) for an earlier effective date.
The veteran has not requested a hearing.
FINDINGS OF FACT
1. All evidence necessary for disposition of the claim has
been obtained.
2. The veteran underwent VA surgery and hospitalization from
May to July 1996.
3. The veteran submitted a claim for TDIU on November 19,
1998.
4. In April 1999, the veteran submitted a claim for benefits
for left foot disability caused by VA surgery.
5. In February 2000, the RO established entitlement to
disability compensation under 38 U.S.C.A. § 1151 for left
foot drop and assigned an 80 percent disability rating
effective from November 19, 1998.
CONCLUSION OF LAW
The criteria for an effective date earlier than November 19,
1998 for grant of TDIU are not met. 38 U.S.C.A. §§ 1151,
5107 (West 1991); § 5107 (Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, §§ 3(a), 4, 114 Stat. 2096, 2097-
99 (2000) (to be codified as amended at 38 U.S.C. § 5107);
§ 5110 (West 1991); 38 C.F.R. §§ 3.400 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In April 1952, the RO established service connection for
residuals of a gunshot wound (GSW) of the left knee and
assigned a 30 percent disability rating.
In October 1987, the veteran fell from a ladder and fractured
his left hip. He underwent surgery at Boston VA Medical
Center for open reduction and fixation of the hip and
thereafter he developed right arm brachial plexus pain. He
underwent additional VA left hip surgery in January 1988
because the previous fixation had failed. Thereafter he
developed left foot drop felt to be secondary to sciatic
nerve injury. See August 1988 VA examination report.
On April 11, 1988, the veteran submitted a claim for VA
disability benefits for his right arm pursuant to 38 U.S.C.A.
§ 351 and a claim for an increased rating for his service-
connected left knee.
In a September 1988 rating decision, the RO denied an
increased rating for residuals of a GSW of the left knee but
established service connection under 38 U.S.C.A. § 351 (now
38 U.S.C.A. § 1151) for status post brachial plexus injury to
the right arm and assigned a 40 percent rating. The combined
service connection ratings totaled 60 percent. The veteran
was notified of the decision and of his appeal rights in a
letter issued in October 1988 but he did not appeal the
decision.
In February 1989, the veteran submitted a claim for tort
damages due to VA surgery in October 1987.
The veteran was hospitalized by VA from February to March
1991 after he fell in his home. The RO considered this
evidence in a July 1991 rating decision that continued the
previous disability ratings. The veteran was notified of the
decision and of his appeal rights in a letter issued in July
1991 but he did not appeal the decision.
The veteran underwent a VA examination in November 1991. The
report notes that the veteran had significant lower extremity
disability, that he required a wheel chair, and that he had
Parkinson's disease. Upon receipt of this evidence, the RO
issued a rating decision in December 1991 that continued the
previous disability ratings. The veteran was notified of the
decision and of his appeal rights in a letter issued in
December 1991 but he did not appeal the decision.
In February 1993, the RO received notice from VA's Veterans
Benefits Administration (VBA) that an administrative tort
claim settlement had been reached concerning a claim under
38 U.S.C.A. § 1151 for disability caused by right arm
paralysis.
In May 1995, the veteran submitted a claim for a temporary
total rating due to recent surgery performed at Boston VA
Medical Center. The veteran also requested that his service
connection disability be "reopened" which the RO treated as
a request for re-evaluation of service-connected
disabilities.
In June 1995, the RO received VA clinical records dated from
1990 to 1995. In an October 1995 rating decision, the RO
determined that a temporary total rating was not warranted,
that the right arm injury did not warrant an increased
rating, and that the veteran had not submitted any new and
material evidence to reopen his left knee GSW disability
rating. The veteran was notified of the decision and of his
appeal rights in a letter issued in October 1995 but he did
not appeal the decision.
In November 1996, the RO received VA clinical reports
reflecting VA hospitalization and hip surgery during May
1995. Sepsis occurred after surgery that required
rehospitalization in March 1996 and again from May to July
1996. In May 1996, the veteran underwent surgical revision
of acetabular left hip arthroplasty. In July 1996, he was
discharged to home to try to obtain weight-bearing capability
on his left hip.
The RO issued a rating decision in July 1997 that notes that
the veteran requested an increased rating in November 1996.
The rating decision continued the previous disability
ratings. The veteran was notified of the decision and of his
appeal rights in a letter issued in July 1997 but he did not
appeal the decision.
In June 1998, the veteran submitted an application for a
clothing allowance, requesting that a metal brace be issued
for his left leg. He reported that he was unable to walk.
On November 19, 1998, the veteran submitted a VA Form 21-
8940, Veteran's Application for Increased Compensation Based
On Individual Unemployability. Along with the application,
the veteran submitted a November 1998 letter from a VA
physician indicating that the veteran was still wheelchair
bound from hip surgery, that he likely could not work.
In a March 1999 rating decision, the RO denied a TDIU rating.
In a letter dated March 24, 1999, the veteran submitted a
claim under 38 U.S.C.A. § 1151 for a left hip condition with
sciatic nerve injury and left foot drop allegedly due to VA
surgery. He claimed that since the VA surgery, he had left
foot drop.
In April 1999, the RO received a March 1999 letter from the
veteran's VA physician reflecting that the veteran's sciatica
and right brachial disorders were both due to VA surgery.
The letter notes that the veteran was wheelchair bound and
that he could not work. The right brachial disorder had
caused a claw hand.
In a July 1999 rating decision, the RO denied compensation
under 38 U.S.C.A. § 1151 for left foot drop on the basis of
no evidence that VA surgery had caused the disability. The
RO also denied TDIU on the basis that the veteran was
unemployable due chiefly to non-service-connected disability.
In August 1999, the RO received another letter from the
veteran's VA treating physician concerning his disability.
The physician clarified that left sciatica and left foot drop
are considered to be service-connected and contribute to
unemployability.
In September 1999, the veteran submitted a notice of
disagreement along with a September 1999 letter from his VA
treating physician again relating sciatic palsy and left foot
drop to previous VA surgery.
An October 1999 VA clinical report notes that the veteran was
housebound with total loss of use of the left leg.
In a February 2000 rating decision, the RO established
entitlement to service connection under 38 U.S.C.A. § 1151
for left foot drop and assigned an 80 percent disability
rating for that disability. The combined total disability
rating was raised to 90 percent. In that decision, the RO
established entitlement to TDIU and assigned an effective
date of November 19, 1998.
In August 2000, the veteran's representative argued that a
1988 VA examination report and a copy of proceedings of a
1989 tort suit comprise the basis for an earlier effective
date.
I. Legal Analysis
The RO has met its duty to assist the veteran in the
development of the claim under the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). It
appears that all relevant evidence available has been
obtained and associated with the claims folder.
It must first be determined whether there is a prior final
decision on the issue that would otherwise limit assigning an
earlier effective date. The record reflects that there are
no prior final decisions denying TDIU. The Board must next
review how the TDIU rating arose to determine which of the
regulations governing effective dates to apply.
If the TDIU rating arose because of a grant or award of
service connection, the effective date can be no earlier than
the date of the claim. 38 U.S.C.A. § 5110(b)(1) (West 1991);
38 C.F.R. § 3.400(b)(2)(i) (2000). If it arose because of an
award of increased benefits, the effective date of award can
be a year prior to date of claim under the provisions of
38 U.S.C.A. § 5110(a), (b)(2) (West 1991). Finally, if it
arose because of a grant of benefits under 38 U.S.C.A.
§ 1151, the effective date will be the date of such injury if
an application therefor is received within one year of such
date, otherwise, date of claim. 38 U.S.C.A. § 5110(c);
38 C.F.R. § 3.400(i) (2000).
The grant of TDIU in this case is based on a February 2000
grant of compensation under 38 U.S.C.A. § 1151 for left foot
drop. There is medical evidence linking left foot drop to VA
surgery and hospitalization during May to July 1996.
However, the veteran did not submit a TDIU claim or an 1151
claim for the left leg within a year of that surgery or
treatment. Thus, the date of the claim controls-not the
date of treatment. In this case, the veteran submitted a
claim for TDIU in November 1998 and for 38 U.S.C.A. § 1151
benefits in March 1999. The Board notes that the veteran did
in fact submit a claim under 38 U.S.C.A. § 1151 back in April
1988; however, he claimed only right arm disability at that
time, not left leg or foot disability. Moreover, the RO
issued a rating decision in September 1988 addressing the
veteran's April 1988 claim and he did not appeal that
decision. The Board therefore agrees with the RO that the
earliest "date of claim" is the date of the TDIU claim made
in November 1998. The Board must therefore find that the
preponderance of the evidence is against the claim and the
benefit of the doubt doctrine is not for application. See
38 U.S.C.A. § 5107(b) (West 1991); § 5107(b) (as amended by
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as
amended at 38 U.S.C. § 5107); Gilbert v. Derwinski, 1 Vet.
App. 49, 58 (1991). Thus, the claim must be denied.
ORDER
An effective date earlier than November 19, 1998 for grant of
TDIU is denied.
R. E. Smith
Acting Member, Board of Veterans' Appeals